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MLive's in-house seditionist joins perpetual candidate in saying "amend" doesn't mean "change"

by: Eric B.

Mon Aug 06, 2012 at 14:49:12 PM EDT


Everyone remember the Reform Michigan Government Now ballot question from 2008? That was the one Mark Brewer tried to run that would have, at the same time, reduced the size of the state Supreme Court (rather than making Brewer win elections), eased term limits, and mandated that every local government offer free cookies and fruit punch at their meetings? Everyone remember how it was blocked from the ballot because it sought to do too many things at once, prompting the justices who voted to keep it off the ballot to say that if Mark Brewer wanted to rewrite the constitution he ought to call for a constitutional convention? I sure do.

MLive's in-house seditionist Matt Davis says Bill Schuette sees the same thing at work when he wrote that just because you amend something doesn't mean you rewrite it (that's actually exactly what it means, but that's beside the point).

Okay, just for clarification ... Bill Schuette called the Protect Our Jobs ballot question unconstitutional, even though it seeks to change the constitution. To back this up, he cites a question that was kept off the ballot -- not because it was unconstitutional (again, every ballot question seeking to change the constitution first starts with a proposition that is, by defition, unconstitutional) -- but because it went beyond the scope of a ballot question by seeking to do about 11 mostly unrelated things all at once.

Keep in mind that 2008 was the same year that Schuette led the campaign against medical marijuana on the grounds that it would lead to the proliferation of "California-style" pot dispensaries all over the state, and after it passed with two-thirds support anyway, wrote an attorney general's opinion that the voters never foresaw the ballot question leading to the opening of California-style pot dispensaries and then got that codified as a court ruling. In other words, he skipped the Legislature and nullified a voter-approved ballot measure all on his own.

Eric B. :: MLive's in-house seditionist joins perpetual candidate in saying "amend" doesn't mean "change"
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Well...
As I said in the previous thread, there's nothing in Article XII of the Constitution limiting the scope of proposed amendments, so I think Brewer's amendment should have been allowed on the ballot (i.e., I think the Supreme Court's decision was wrong). Not that I think it was a good idea, mind you. I had an opportunity to sign the petition for that one at the same time as I signed a petition for the stem-cell-research amendment, and declined.

Based on the words of Article XII (and conservatives are always sticklers about following the text, right?), it would be entirely within the voters' rights to approve an amendment tearing the Constitution of 1963 to shreds and erecting an entirely new structure in its place.

Now I will quibble with your statement that "every ballot question seeking to change the constitution first starts with a proposition that is, by defition, unconstitutional". To me, unconstitutional means contrary to the meaning of the Constitution. So, if the legislature tried to enact the death penalty, that would be unconstitutional per Article IV, Section 46. An amendment to repeal that section would, in fact, be making something constitutional that previously had been unconstitutional.

On the other hand, many amendments start with a proposition that is non-constitutional, i.e., not mentioned in the constitution or implied by its provisions. An example would be the marriage amendment of 2004, or the stem-cell amendment of 2008. In both cases, the legislature had made something illegal, and those laws were presumptively constitutional (no court had ruled otherwise). In the case of marriage, the voters ratified the legislature's choice (mistakenly, in my opinion), and in the case of stem-cell research, the voters overruled the legislature, and made a previously constitutional statute unconstitutional.



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